Commonwealth v. Mcgillivary ( 2023 )

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21-P-679 Appeals Court
COMMONWEALTH vs. ROBERT E. MCGILLIVARY, JR.
No. 21-P-679.
Essex. December 13, 2022. – April 19, 2023.
Present: Sacks, Singh, & Brennan, JJ.
Threatening. Assault and Battery on Certain Public Officers and
Employees. Mental Impairment. Criminal Responsibility.
Practice, Criminal, Instructions to jury, Request for jury
instructions.
Complaint received and sworn to in the Newburyport Division
of the District Court Department on December 21, 2018.
The case was tried before Mary F. McCabe, J.
Adriana Contartese for the defendant.
Kayla Johnson, Assistant District Attorney, for the
Commonwealth.
BRENNAN, J. In January 2020, a District Court jury
convicted the defendant of threatening to commit an assault and
2
battery on a police officer under G. L. c. 275, § 2.1 On appeal,
the defendant challenges the sufficiency of the evidence and the
judge's instructions to the jury. We affirm.
Background. In the early morning hours of December 20,
2018, Salisbury police responded to a call from the defendant,
who told officers he was "mentally unstable" and needed
treatment.2 Once an ambulance arrived, the defendant decided not
to go to the hospital. After spending approximately twenty
minutes with the defendant, police determined that he did not
require involuntary hospitalization and allowed him to remain at
home.
Later that day, police and other emergency personnel went
to the defendant's home for a "well-being" check after a family
member called for assistance because of concerns about the
defendant's mental health. When police tried to get his
attention, the defendant screamed at them to get off his
property, claimed he was "armed to the teeth," and threatened to
shoot anyone who came to his door. The resulting standoff
between the defendant and police lasted over eight hours.
During the standoff, the defendant spoke to his cousin several
1 The judge entered a required finding of not guilty at the
close of the Commonwealth's case on an additional count that
alleged threatening to commit murder.
2 The police dispatcher believed the defendant wanted a
"voluntary psych eval."
3
times, telling her he "would come out and go in the ambulance,
but he wanted someone he trusted there." Ultimately, the
defendant was taken into custody by the State police special
hostage negotiation and tactical unit.
Discussion. 1. Sufficiency of the evidence. "The
elements of threatening a crime include an expression of
intention to inflict a crime on another and an ability to do so
in circumstances that would justify apprehension on the part of
the recipient of the threat." Commonwealth v. Hamilton, 459
Mass. 422, 426–427 (2011), quoting Commonwealth v. Sholley, 432
Mass. 721, 724–725 (2000), cert. denied, 532 U.S. 980 (2001).
Actual receipt of a threat by the intended victim is not an
element of threatening, nor is causing actual fear in the victim
required. See Commonwealth v. Kerns, 449 Mass. 641, 653 (2007)
("The Appeals Court also has recognized that a defendant may be
criminally responsible for making a threat to commit a crime,
even when the threat fails entirely to reach its intended
victim, so long as there is an intent to put the victim in
imminent fear"); Commonwealth v. Maiden, 61 Mass. App. Ct. 433,
436 (2004) ("There is no firm basis that we have found for
concluding that transmission of the threat to the victim --
i.e., actual receipt by the victim -- is a necessary element of
the crime of making a threat. . . . [T]he law seems to be
settled that a threat need not cause actual fear or apprehension
4
in the victim"); Commonwealth v. Hughes, 59 Mass. App. Ct. 280,
283 (2003) (affirming conviction for threats where judge
instructed jurors that "[the Commonwealth] must prove beyond a
reasonable doubt that the defendant intended the threat to be
conveyed . . . so it is necessary for the Commonwealth to prove
that he intended that threat to be conveyed to [the victim],
whether or not it was").3 The defendant does not contend that
the evidence fell short as to the required elements. Instead,
he argues that there was insufficient evidence produced by the
Commonwealth that he was criminally responsible. Although the
defendant failed to move for a required finding of not guilty
and raises the argument for the first time on appeal, "a
conviction premised on legally insufficient evidence always
creates a substantial risk of a miscarriage of justice."
Commonwealth v. DeJesus, 99 Mass. App. Ct. 275, 282 n.14 (2021),
S.C., 489 Mass. 292 (2022).
"Where a defendant asserts a defense of lack of criminal
responsibility and there is evidence at trial that, viewed in
3 We note that in Commonwealth v. Leonardo L., 100 Mass.
App. Ct. 109, 111 (2021), we initially discussed a formulation
of threatening that includes "caus[ing] the victim to fear
harm," (quoting language from Sholley, 432 Mass. at 727, that
was focused on threatening in the context of free speech
protections under the First Amendment to the United States
Constitution), but clarified that "[t]he law seems to be settled
that a threat need not cause actual fear or apprehension in the
victim." Leonardo L., supra at 114.
5
the light most favorable to the defendant, would permit a
reasonable finder of fact to have a reasonable doubt whether the
defendant was criminally responsible at the time of the offense,
the Commonwealth bears the burden of proving beyond a reasonable
doubt that the defendant was criminally responsible."4
Commonwealth v. Lawson, 475 Mass. 806, 811 (2016). "To meet
this burden, the Commonwealth [must] show beyond a reasonable
doubt either that [the defendant] had no mental disease or
defect or that he had the substantial capacity both to
appreciate the wrongfulness of his conduct and to conform his
conduct to the requirements of the law." Commonwealth v.
McLaughlin, 431 Mass. 506, 508 (2000). We "must examine the
evidence in the light most favorable to the Commonwealth and
determine whether the evidence and the inferences that
reasonably could be drawn from it were of sufficient force to
permit a rational finder of fact to conclude that the defendant
was criminally responsible beyond a reasonable doubt"
(quotations and citation omitted). Lawson, supra at 816.
The jury may consider "evidence of the defendant's words
and conduct before, during, and after the offense" in reaching
their conclusion on the defendant's sanity. Lawson, 475 Mass.
4 The Commonwealth correctly conceded at trial that the
defendant made the necessary showing to raise criminal
responsibility and does not argue otherwise on appeal.
6
at 816. Here, viewed in the light most favorable to the
Commonwealth, the evidence would permit a rational fact finder
to infer that (1) the defendant was aware of his own mental
health issues when he called police to request hospitalization
for a mental health evaluation hours before his confrontation
with police; (2) the defendant's threats to shoot anyone who
came to his door were motivated by police officers' refusal to
"get off [his] property" and "leave [him] alone"; (3) the
defendant knew that his threats and conduct toward police were
wrong when he refused to leave his house despite multiple
attempts by police to negotiate with him to come outside; and
(4) the defendant possessed the ability to control his behavior
because, while he was described as "agitated," "angry," and
"yelling" during interactions with the police, he was "calm"
when speaking with his cousin during the standoff. We are
satisfied that this evidence was sufficient for a rational juror
to conclude that, at the time of the offense, the defendant "had
the substantial capacity both to appreciate the wrongfulness of
his conduct and to conform his conduct to the requirements of
the law."5 McLaughlin, 431 Mass. at 508.
5 The defendant's argument that "the jury fail[ed] to
adequately consider the substantial evidence [the d]efendant
presented that he was mentally ill at the time of the offense"
is unavailing. As we have consistently held, "[t]he weight and
credibility of the evidence is the province of the jury."
7
2. Jury instructions. The defense centered on the
defendant's mental state at the time of the offense. The
defendant requested that the judge instruct the jury on both
lack of criminal responsibility and mental impairment short of
insanity. He now argues that the judge combined the
instructions in a manner that was confusing and may have misled
the jury. We disagree.
"Judges have broad discretion in framing jury instructions,
including determining the appropriate degree of elaboration."
Commonwealth v. Toolan, 490 Mass. 698, 708 (2022). Here, the
judge first instructed the jury, consistent with the Criminal
Model Jury Instructions for Use in the District Court (Model
Jury Instructions), that the crime of threatening to commit a
crime consisted of four elements, as follows:
"First, that the defendant expressed an intent to injure a
person, now or in the future. Second, that the defendant
intended that his threat be conveyed to a particular
person. Third, that the injury that was threatened, if
carried out, would constitute a crime. And, fourth, . . .
that the defendant made the threat under circumstances
which could reasonably have caused the person to whom it
was conveyed to fear that the defendant had both the
intention and the ability to carry out the threat."
See Instruction 6.700 of the Model Jury Instructions (2013).
Commonwealth v. Dubois, 451 Mass. 20, 28 (2008). We decline to
substitute our judgment for that of the jury.
8
Immediately following that instruction, the judge moved on
to lack of criminal responsibility. Once again relying on
Instruction 6.700, the judge stated in relevant part:
"A person is lacking in criminal responsibility if he has a
mental disease or defect; and, as a result of that mental
disease or defect, either is substantially unable to
appreciate the criminality, the wrongfulness, of his
conduct, or he is substantially unable to conform his
conduct to the requirements of the law. The defendant's
mental condition must have been such that he was unable to
realize that his behavior was wrong or was unable to make
himself behave as the law required."6
The judge then instructed the jurors on mental impairment
short of insanity, or as she described it, "a mental impairment
that does not rise to the level of lack of criminal
responsibility." See Instruction 9.220 of the Model Jury
Instructions (2009). The judge told the jurors that the
instruction "may be relevant to your deliberations on the issue
6 The version of the Model Jury Instruction used by the
judge included an instruction that the jurors could infer that
most people are sane. See Instruction 9.200 of the Model Jury
Instructions (2009). The Supreme Judicial Court has ruled that
such an instruction should not be given. See Lawson, 475 Mass.
at 815 n.8 (given its "meager weight," judges "should not
instruct juries regarding this inference"). We note that the
most recent iteration of the instruction on lack of criminal
responsibility, Instruction 9.200 (2022), eliminates the
inference of sanity language and contains a reference in note 5
to the holding in Lawson but not a specific admonition not to
instruct jurors on the inference of sanity. As the defendant
neither objected at trial nor raised this issue on appeal, we
need not address it further. See Mass. R. A. P. 16 (a) (9) (A),
as appearing in 481 Mass. 1628 (2019) ("The appellate court need
not pass upon questions or issues not argued in the brief").
9
of whether the defendant had the criminal intent that is
required for a conviction." By agreement of the parties, the
judge modified the instruction by replacing the language
regarding specific intent with a summary repetition of the
elements of threatening to commit a crime, followed by an
instruction on general intent.7
Mental impairment short of insanity may bear on a person's
ability to form specific intent, and thus it is relevant to
crimes that require specific intent, but it is not relevant
where a crime requires only general intent. See Commonwealth v.
McNulty, 458 Mass. 305, 325 (2010). Here, no instruction on
mental impairment short of insanity was required because
threatening is a crime of general intent. General Laws c. 275,
§ 2, which criminalizes "threaten[ing] to commit a crime against
the person or property of another," does not require a specific
intent that the object of the threat be placed in fear.
Instead, the elements of the crime require only the general
intent to communicate a threat. See Sholley, 432 Mass. at 724-
725 ("The elements of threatening a crime include an expression
7 With regard to the word "intentionally," the judge
instructed the jurors that they "should give that word its
ordinary meaning of acting voluntarily and deliberately and not
because of accident or negligence. It's not necessary that the
defendant knew he was breaking the law, but it is necessary that
he intended the act to occur which constitutes the offense."
See Instruction 3.120 of the Model Jury Instructions (2009).
10
of intention to inflict a crime on another and an ability to do
so in circumstances that would justify apprehension on the part
of the recipient of the threat" [citation omitted]);
Commonwealth v. Hokanson, 74 Mass. App. Ct. 403, 407 (2009)
("when a defendant utters a threat to a third party who 'would
likely communicate it to [the ultimate target],' . . . the
defendant's act constitutes evidence of [his] intent to
communicate the threat to the intended victim" [citation
omitted]).8 Compare Commonwealth v. Pfeiffer, 482 Mass. 110,
115, cert. denied, 140 S. Ct. 498 (2019) (specific intent crimes
require proof that defendant not only consciously intended to
take certain actions, but also consciously intended certain
consequences). Any possible flaw in the judge's instruction on
mental impairment short of insanity could not have prejudiced
the defendant, where he was not entitled to the instruction at
8 In Hokanson, our reference in dictum to "look[ing] at more
than a defendant's specific intent that his threats be made to
the target," Hokanson, 74 Mass. App. Ct. at 406 n.5, does not
contradict our conclusion here that threatening to commit a
crime requires only a general intent. The necessary intent is
to communicate a threat to a target, either directly or
indirectly, through a third party; communication is not a
consequence of the type that could make threatening a specific
intent crime. That communication is at times expressed in
passive language, particularly regarding threats made through
third parties (i.e., intent that the threat "be communicated")
does not convert intending the act of conveying a threat into
intending a particular consequence in the specific-intent sense.
See Commonwealth v. Pfeiffer, 482 Mass. 110, 115, cert. denied,
140 S. Ct. 498 (2019).
11
all; that the judge gave the instruction provided the defendant
"more protection than the law afforded him." Commonwealth v.
Simpson, 434 Mass. 570, 589-590 (2001).9
Ultimately, we are satisfied that "the judge's instructions
adequately distinguished between the concepts of mental disease
or defect and mental impairment," Toolan, 490 Mass. at 709, and
provided the jury with sufficient guidance on when and how to
apply each concept, without confusing the two. Although
instructing the jury on mental impairment short of insanity was
error, the defendant has failed to demonstrate a substantial
risk of a miscarriage of justice. See Commonwealth v. Leary, 92
Mass. App. Ct. 332, 342 (2017) (error in jury instruction
occasioned by defendant's own request reviewable only for
substantial risk of miscarriage of justice).
Judgment affirmed.
9 Although the defendant asserted at oral argument that
threatening to commit an assault and battery is a specific
intent crime, he agreed with the judge's instruction at trial
and wrote in his brief that it "is a crime of general intent or
specific intent." See Mass. R. A. P. 16 (a) (9) (A). "Such a
challenge does not rise to the level of adequate appellate
argument." Commonwealth v. Hiskin, 68 Mass. App. Ct. 633, 634
n.2 (2007).